Petition — Morejon-Pacheco v. United States

in the

Supreme Cou

of the

United States

OCTOBER TERM, 1979

No. 79-178%

JULIO MOREJON-PACHECO,

Petitioner,

versus

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT

OF APPEALS FOR THE FIFTH CIRCUIT

MICHAEL J. OSMAN, ESQUIRE

ROBERT M. DUBOFF, ESQUIRE

Micheel J. Osman, P.A.

Peninsula Federal Building

200 S.E. First Street

Suite 501

Miami, Florida 33131

(305) 358-6491

Counsel for Petitioner

May 9, 1980

INDEX

Page

I HII 6 ginsc tek ceenkdecnscksuedcue 2

PI Sc cncuinaatounweswaenuen ok Guawaauhne tee 2

Cpuettion Propented .........cccscccccccoccccuceecs 2

Statutory Provisions Involved ..................... 3

Statement of the Case and Facts ...............08. 3

Reasons for Granting the Writ..................... 9

I. The Court Of Appeals Violated The

IT.

Petitioner’s Right To Due Process By

Disposing Of His Fourth Amendment

Claim On The Basis Of Standing Where

The Government Conceded Standing At

Every Stage Of The Proceedings Below

And The Question Of The Petitioner’s

Standing Was Never Raised On Appeal By

Re. kas sctiasesaneete

The Court Of Appeals Erred In

Concluding That The Petitioner Did Not

Have Standing Where The Indictment

Specifically Charged Him With Possession

Of The Seized Contraband And The

Record Clearly Reflects That He Was In

Possession At The Time Of The Search

RTE book Rhee eee

INDEX (continued)

Nee ne eubbecvcecen

Tacs ca cheecnessscessvece

ii

TABLE OF AUTHORITIES

Page

Barrows v. Jackson,

BAB U.S. 249 (1953) ....cccccccccccccvccccccees 12

Brown v. United States,

411 U.S. 223, 93 S.Ct. 1565 (1973) ...... 18, 19, 23,

24, 25, 26

Combs v. United States,

92 S.Ct. 2284 (1972) ....cscccccccceeceee 12, 24, 25

Dorszynski v. United States,

94 S.Ct. 3042 (1974) ...ccccccccccccccccvsceces 13

Duncan v. State,

276 Md. 715, 351 A.2d 144 (1976) ........0eeeee 18

Garrity v. State of New Jersey,

385 U.S. 498 (1967) ....ccccccccccccccscccceces 11

Harris v. New York,

401 U.S. 222, 91 S.Ct. 643 (1971) .......e eee eee 18

Hormel v. Helvering,

312 U.S. 552, 61 S.Ct. 719, (1941) .......+.-. 11, 13

Jones v. United States,

962 1.3. 257 (1060) ..ccccccccccccees 16, 17, 18, 19,

23, 26, 28, 29

King v. United States,

565 F.2d 356 (5th Cir. 1978) .......eeeeeeeeeeee 14

iii

TABLE OF AUTHORITIES (continued)

Page

Mancusi v. DeForte,

392 U.S. 346, 88 S.Ct. 2120 (1968) ........... 17, 26

Mayberry v. Davis,

608 F.2d 1070 (5th Cir. 1979) ..............006. 14

Messelt v. Alabama,

595 F.2d 247 (5th Cir. 1979) .......... cc ccc cece 14

Miranda v. Arizona,

ee cu ebacecsececen 18

Nadeau v. Helgemoe,

423 F.Supp. 1250 (D. N.H. 1976), 561 F.2d 411

CRT CF, OE We RTO CIO IE) nn ciccccccccccnccs 11

Needleman v. Bohlen,

WE CMM EE BUTE ciccieccccevececcvccs 14

New Jersey v. Portash,

pote, eee a ee eee 18

People v. Sturgis,

58 Ill.2d 211, 317 N.E.2d 545 (1974) ......... 17, 18

Pinkerton v. United States,

Re I a ve adivedbeuve¥aes<suns 21

iv

TABLE OF AUTHORITIES (continued)

Page

Rakas v. Illinois,

on) a | it re 12, 16, 17, 22,

23, 24, 26, 27, 29

Response of Carolina, Inc. v. Leasco Response, Inc.,

537 F.2d 1307 (5th Cir. 1976) .................. 14

Simmons v. United States,

390 U.S. 377, 88 S.Ct. 967 (1968) ....... 10, 11, 15,

17, 18, 24, 25, 28

Singleton v. Wulff,

Ee 11, 13

United States v. Aguiar,

610 F.2d 1296 (5th Cir. 1980) .................. 2

United States v. Bazzano,

570 F.2d 1120 (8d Cir. 1977) ................... 14

United States v. Byers,

600 F.2d 1130 (5th Cir. 1979) ............ 21, 22, 23

United States v. Chapman,

549 F.2d 1075 (6th Cir. 1977) .................. 14

United States v. Edmonds,

611 F.2d 1386 (5th Cir. 1980) .................. 12

United States v. Emery,

541 F.2d 887 (1st Cir. 1976) ................. 12, 14

TABLE OF AUTHORITIES (continued)

Page

United States v. Grunsfeld,

re Bee Ce as BOTT vnc cc ccccvaccscss 28

United States v. Harwood,

ST Fe ae Cee Gt. FBTR) ince cccccccccccces 28

United States v. Hodges,

606 F.2d 520 (5th Cir. 1979) ............. 20, 21, 22

United States v. Jeffers,

342 U.S. 48, 72S.Ct. 98 (1951) ..........06: 24, 26,

27, 28

United States v. Moore,

ee ee Oe es BUTE) oo ivi cc ccccicccccnce 14

United States v. Morejon-Pacheco,

446 F.Supp. 83 (S.D. Fla. 1978) ............... 5

United States v. Oakes,

664 F.2d 364 (10th Cir. 1977) ....ccccsccsccese. 14

United States v. Palazzo,

- 488 F.2d 942 (Gth Cir. 1974) .......cccccceces 22, 23

United States v. Patrin,

BFS Fe Fee Cee Ce TOTS) vccccccvecccvcass 13, 14

United States v. Russell,

585 F.2d 368 (8th Cir. 1978) .........cccccecees 14

TABLE OF AUTHORITIES (continued)

Page

United States v. Salvucci,

599 F.2d 1094 (1st Cir. 1979); cert. granted,

A RETO heccedciccncccencacs 16, 17, 29

United States v. Whitaker,

592 F.2d 826 (5th Cir. 1979) ........ccccccees 12, 13

United States v. Wilson,

536 F.2d 883 (9th Cir. 1976) ..............cceee 28

Vale v. Louisiana,

a ino Cac ced daa sen cas eeck 8

Youakim v. Miller,

SP, MINE gos coc ek ence pencanccscucn 13

STATUTORY PROVISIONS INVOLVED

Page

Pe es Ciivnivsnapccavscivnsssscanssecces 3

weeee ah, UBLC.A, GERAD) ons ccsccsccsccccsene 3

BEE, VOD, FOU) ooiscsccscccscccvesssscs 3

RE Ey ls UE Saks ccd sn csicuvancecdasecs 3

PE, CA GEMM) cc ciccccccccccccwssuves 2

BOE, rs WI Sin os ve ccutcendscccdosiede 14

OE, Was GOD oc indscssvcanevissesscccer 14

OTHER AUTHORITIES

American Heritage Dictionary (1979) ............. 21

Gutterman, A Person Aggrieved: Standing to

Suppress Illegally Seized Evidence in

Transition, 23 Emory L.J. 111, 119 (1974) ..... 27

LaFave, Wayne R., Search and Seizure, A Treatise

On The Fourth Amendment, Vol. 3, (1978) . 18, 24,

26, 27

viii

in the

Supreme Court

of the

United States

OCTOBER TERM, 1979

No.

JULIO MOREJON-PACHECO,

Petitioner,

versus

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT

OF APPEALS FOR THE FIFTH CIRCUIT

The petitioner, Julio Morejon-Pacheco, respectfully

prays that a writ of certiorari issue to review the

judgment, opinion, and order on rehearing of the United

States Court of Appeals for the Fifth Circuit entered in

this proceeding on February 4, 1980, and on March 10,

1980.

OPINIONS BELOW

The opinion of the Court of Appeals, reported as

United States v. Aguiar, 610 F.2d 1296 (5th Cir. 1980)

appears in the Appendix attached hereto. (Appx. pp. 8-

28) The Court of Appeals denied the petitions for

rehearing and rehearing en banc in a per curiam order

dated March 10, 1980. (Appx. p. 30)

JURISDICTION

The judgment of the Court of Appeals for the Fifth

Circuit was entered on February 4, 1980. A timely

petition for rehearing and petition for rehearing en banc

was denied without an opinion on March 10, 1980. For

good cause shown, this Honorable Court extended the

time for filing the present petition for a writ of certiorari

until May 9, 1980. This Court’s jurisdiction is invoked

under Title 28, U.S.C.A. §1254(1).

QUESTIONS PRESENTED

Whether the Court of Appeals erred by disposing of

the petitioner’s Fourth Amendment claim on the basis

of standing where the government conceded standing at

every stage of the proceedings below and the issue of

standing was never briefed or argued on appeal by the

government.

Whether the Court of Appeals erred in concluding

that the petitioner did not have standing where the

indictment specifically charged him with possession of

the seized contraband and the record clearly reflects

that he was in possession at the time of the search and

seizure.

STATUTORY PROVISIONS INVOLVED

Title 21, U.S.C.A. §841(a)(1).

Title 21, U.S.C.A. §846.

STATEMENT OF THE CASE AND FACTS

This petition arises out of the opinion and judgment

of the Court of Appeals for the Fifth Circuit affirming

the judgment of the United States District Court for the

Southern District of Florida. The petitioner, Julio

Morejon-Pacheco, was indicted along with ten other co-

defendants. (R.I, pp. 1-5; 131-136.) The petitioner was

tried and convicted on all five counts alleged in the

second superseding indictment. (R.I, pp. 131-136.)

Count I charged a conspiracy to possess with the

intent to distribute cocaine in violation of Title 21,

U.S.C.A. §841(a)(1); Title 21, U.S.C.A. §846; and Title

18, U.S.C.A. §2. Count II charged the petitioner with

the distribution of an unspecified amount of cocaine in

violation of Title 21, U.S.C.A. §846 and Title 18,

U.S.C.A. §2. Count III charged the petitioner with

possession with the intent to distribute 448 grams of

cocaine in violation of Title 21, U.S.C.A. §841(a)(1) and

Title 18, U.S.C.A. §2. Counts IV and V charged the

petitioner with the knowing use of a communications

facility in furtherance of a felony in violation of Title 21,

U.S.C.A. §843(b). (R.I, pp. 131-136.)

Prior to the trial, the United States Magistrate held

a hearing on the petitioner’s motion to suppress the 448

grams of cocaine he is charged with possessing under

Count III of the indictment. (Appx. p. 24) Based upon

the fact that the government did not contest the

petitioner’s standing to make a motion to suppress the

Count III cocaine, the Magistrate heard evidence on the

merits of the Fourth Amendment question presented.

The Magistrate found that the search and seizure was

valid under a very narrow warrant exception and

recommended denial of the motion to suppress the 448

grams of cocaine. On appeal, the only Fourth

Amendment question briefed and argued by the parties

was the reasonableness of the warrantless search in this

case. (Appx. p. 6) (Appx. p. 24) The question of standing

was expressly conceded by the government at the

hearings below and was not raised on appeal. (Appx.

p. 3)

The district court accepted the Magistrate’s

recommendation and proceeded to deny the petitioner’s

motion to suppress the seized cocaine.' The

government's failure to raise the question of standing

and the ultimate concession thereof foreclosed any offer

of evidence or that question to the Magistrate or to the

district court. The district court’s memorandum opinion

clearly notes that the government had conceded the

question of the petitioner’s standing to contest the

seizure of the Count III cocaine he is charged with

‘Local Rule 25(c)(2) of the District Court for the Southern

District of Florida provides that the Magistrate may conduct

evidentiary hearings on a motion to suppress evidence seized during

an alleged unlawful search, but the final decision thereon shall be

by the district court.

possessing. (Appx. p. 3) United States v. Morejon-

Pacheco, 446 F.Supp. 83 (S.D. Fla. 1978).

On appeal to the Fifth Circuit Court of Appeals, the

petitioner raised numerous issues, to wit: improper

comment upon the petitioner’s failure to testify at trial;

the trial court’s abuse of discretion in failing to sever the

petitioner’s trial from the co-defendants with

antagonistic defenses; the trial court’s erroneous denial

of the petitioner’s motion for new trial based upon newly

discovered evidence of governmental misconduct and

the suppression of favorable exculpatory evidence; and

the erroneous cenial of the petitioner's motion to

suppress the 448 grams of cocaine he is charged with

possessing under Count III of the indictment. (Appx. p.

24)

For the purposes of the instant petition, the main

issue presented is the erroneous manner in which the

Court of Appeals raised the question of standing sua

sponte and then decided the Fourth Amendment issue

without reaching the merits of the claimed error. (Appx.

p. 25) Subsequent to the Court of Appeals’ opinion, the

petitioner timely filed a petition for rehearing and a

petition for rehearing en banc which was limited to the

issues presented herein, to wit: the procedural error of

raising and deciding a question not raised on appeal and

upon which the petitioner had no opportunity to present

evidence below and the substantive standing question

itself. Said petitions for rehearing and rehearing eri Sanc

were denied without an opinion in a per curiam order on

March 10, 1980. (Appx. p. 30)

The relevant facts adduced below reflect that the

Drug Enforcement Administration had conducted an

undercover operation which began in April of 1977 and

ended on July 18, 1977, the date of the petitioner’s arrest

and the contested search and seizure. (Appx. pp. 13-14)?

After several months of negotiations between the DEA

agents and the defenuants below, the petitioner,

Morejon-Pacheco, agreed to take agent Jezzeny to the

home of a co-defendant for the purpose of weighing and

testing the cocaine that the agents were to purchase.

One of the co-defendants had simultaneously taken

agent Fonte to another house for the purpose of showing

the sellers the money they were to receive from the

cocaine sale. The date of these events was July 18, 1977.

(Appx. p. 13) (R.VI, pp. 431, 627.)

The record reflects that when the petitioner and

agent Jezzeny entered the house, co-defendant Virgen

Palenzuela led them to a back bedroom where she

produced a box containing five and one-half (5%)

kilograms of cocaine. She also produced a bag from a

bathroom drawer which contained the 448 grams of

cocaine that became the subject of the petitioner’s

motion to suppress below. (Appx. p. 15) (R.VI, pp. 631-

632; R.IV, pp. 16-17.) Before the sale could be

consummated, agent Jezzeny and Morejon-Pacheco

received a telephone call from agent Fonte who told

them something had gone wrong at the money house and

that a meeting was necessary. (Appx. p. 14) (R.VII, pp.

651-661.)

Before agent Jezzeny and the petitioner left Virgen

Palenzuela’s house, two of the co-defendants, Mr. and

2Accepting the statement of facts in the Court of Appeals’

opinion as accurate, the facts set forth herein will be restricted to

the events immediately preceding the contested search and seizure.

(Appx. pp. 13-15)

Mrs. Torres, removed the five and one-half (5%)

kilograms but the petitioner left the 448 gram bag of

cocaine with Mrs. Palenzuela. (Appx. p. 14) (R.VII, pp.

656-658; R.IV, pp. 31-32.)

Upon leaving Mrs. Palenzuela’s house with agent

Jezzeny, the petitioner was placed under arrest by

agents Fonte, Jezzeny and other officers. (Appx. p.

14)(R.VO, pp. 662-663.) Subsequen: to the petitioner’s

arrest, the DEA agents and eight or more City of Miami

police officers went back to the Palenzuela house to

arrest the co-defendants. (Appx. p. 14) (R.IV, pp. 35-

39.) The elapsed time between the arrest of the

petitioner and the contested search and seizure was

twenty-five (25) minutes. (Appx. p. 14) (R.IV, p. 35.)

Although all of the co-defendants were arrested in

the front yard of the Palenzuela house, the agents

proceeded to enter the house and conduct a systematic

warrantless search. (Appx. p. 15)(R.IV, pp. 43, 53, 57,

81.) After a twenty-minute search of the house, the eight

agents and officers recovered the 448 grams of cocaine

from a drawer in a back bathroom. (Appx. p. 15)(R.IV,

pp. 45-46.) Said search was conducted despite the

agents’ admission that there were more than enough

officers to secure the premises until a warrant could be

obtained. (R.IV, pp. 84-86.)

It is significant to note that Count II of the

indictment specifically alleges that on or about July 18,

1977, the date of the contested search and seizure, the

petitioner knowingly possessed the 448 grams of cocaine

seized from the Palenzuelas’ house moments after he

left and was placed under arrest. (Appx. p. 3) It is also

significant to note Virgen Palenzuela’s trial testimony in

which she stated that all of the cocaine that she showed

to agent Jezzeny belonged to the petitioner, Morejon-

Pacheco. (Appx. p. 15) (R.VII, pp. 805, 831-836, 850.)

The Court of Appeals’ opinion correctly notes that

Virgen Palenzuela testified that she had no idea what

was in the packages and that she was only doing a favor

for her friend, the petitioner. (Appx. p. 15, N. 8.)

(R.¥ M1, pp. 800-806.) Both the five and one-half (512)

kilograms in the box that she gave back to Mr. and Mrs.

Torres and the 448 gram bag of cocaine in issue here

belonged to the petitioner according to Virgen

Palenzuela and the indictment itself. (Appx. p. 15)

Despite the facts noted herein, the Court of Appeals

ruled that the petitioner did not have standing to

contest the search and seizure and did not reach the

merits of the petitioner’s claim of constitutional error.

This petition for a writ of certiorari follows.

°The district court ruled that the warrantless search in this

case was permissible under a very narrow search warrant exception

recently formulated by the Fifth Circuit Court of Appeals. This

exception to the controlling law of Vale v. Louisiana, 399 U.S. 30

(1970), permits a “cursory” check of the premises for armed persons

if the officers have a reasonable belief that unknown confederates

pose an immediate threat to their safety. This issue was never

reached by the Court of Appeals because of the erroneous

conclusion that the petitioner lacked standing to contest the search

and seizure.

8

REASONS FOR GRANTING THE WRIT

I,

THE COURT OF APPEALS VIOLATED

THE PETITIONER’S RIGHT TO DUE

PROCESS BY DISPOSING OF HIS FOURTH

AMENDMENT CLAIM ON THE BASIS OF

STANDING WHERE THE GOVERNMENT

CONCEDED STANDING AT EVERY

STAGE OF THE PROCEEDINGS BELOW

AND THE QUESTION OF THE

PETITIONER’S STANDING WAS NEVER

RAISED ON APPEAL BY THE

GOVERNMENT.

It is submitted that the issues presented by the

instant petition are of far-reaching significance because

the procedure employed by the Court of Appeals has

resulted in a denial of due process regarding the

determination of the petitioner’s claim of an illegal

search and seizure. As noted above, the government had

never raised the question of standing before the district

or appellate courts. The trial judge’s memorandum

opinion noted the government’s concession of the

petitioner’s standing before ruling upon the merits of the

Fourth Amendment claim. (Appx. p. 3)

On appeal, neither the government nor the

petitioner raised the issue of the petitioner’s standing to

contest the search and seizure. Notwithstanding the fact

that standing was conceded by the government and the

district court, the Court of Appeals avoided the merits of

the Fourth Amendment claim against the petitioner on

the basis of standing. (Appx. p. 24) Such action by the

Court of Appeals rises to the level of a denial of due

process because the posture in which the case reached

the appellate level prevented the petitioner from

introducing any evidence of his standing to contest the

search and seizure in the trial court.

It is submitted that had the government and/or the

trial court contested the Petitioner’s standing, he would

have had the opportunity and the inclination to testify

at the suppression hearing under the guidelines of

Simmons v. United States, 390 U.S. 377 (1968).

Simmons holds that a defendant may testify at a

suppression hearing to establish his standing to contest

the search and seizure, but the government cannot use

said testimony against the defendant in its case-in-

chief. Id. at pp. 390-394. The Court of Appeals has

caused the petitioner to be the victim of a deception by

disposing of his constitutional claim on the basis of

standing when the government conceded the question of

standing at all times.

The opinion of the Court of Appeals in this case sets

two disturbing precedents. First, it encourages a

prosecutorial practice of conceding the question of

standing below when the government knows that said

tactic will serve to prevent the defendant from making a

full and complete appellate record. Second, once this

tactic becomes widespread, it will force the defendant to

testify at pretrial suppression hearings, thereby creating

a chilling effect upon his constitutional right to testify in

his own behalf at trial. This is so because although

Simmons, supra, does prevent the use of the defendant’s

suppression hearing testimony as evidence-in-chief, the

10

government can still use it to attempt to impeach the

defendant if he testifies at trial and to possibly

prosecute him for perjury if his trial testimony is

inconsistent. It is a denial of due process to force a

criminal defendant to forsake one constitutional right to

preserve another. Simmons v. United States, at p. 394.

Garrity v. State of New Jersey, 385 U.S. 493 (1967);

Nadeau v. Helgemoe, 423 F.Supp. 1250, 1261 (D. N.H.

1976), 561 F.2d 411 (1977); 581 F.2d 275 (1978).

With regard to the question of what issues are

properly before the Court of Appeals, the Supreme

Court has stated:

“It is the general rule, of course, that a federal

appellate court does not consider an issue not

passed upon below. In Hormeg] v. Helvering,

312 U.S. 552, 556, 61 S.Ct. 719, 721, 83 L.Ed.

1037 (1941), the Court explained that this is

‘essential in order that parties may have the

opportunity to offer all the evidence they

believe relevant to the issues . . . [and] in

order that litigants may not be surprised on

appeal by final decision there of issues upon

which they have no opportunity to introduce

evidence.’ ” Singleton v. Wulff, 96 S.Ct. 2868,

2877 (1976).

It is precisely the danger recognized by this Court in

Singleton, supra, that confronts the Court now. The

failure of the government to properly raise the question

of standing below precludes the Court of Appeals from

raising and passing upon the question because the

petitioner has been denied the opportunity to introduce

11

evidence relevant to the question of standing. See,

Rakas v. Illinois, 99 S.Ct. 421, 422 (N. 1) (1978); and

Combs v. United States, 92 S.Ct. 2284 (1972).

In Combs v. United States, supra, this Court held

that the Court of Appeals had erred in denying the

defendant’s Fourth Amendment claim on the basis of

standing. The reasoning of the Court was that Combs

had not introduced any evidence because, as here, the

government did not raise the question of standing in the

trial court. Id. at p. 2286. In Combs, supra, the Court

remanded the case to the trial court for an evidentiary

hearing on the question of standing. It is submitted that

as announced in Rakas v. Illinois, supra, standing is no

longer an issue of separate inquiry but a part of the

substantive Fourth Amendment question itself. Hence,

the government’s concession of standing waives the

question forever because it is not a jurisdictional issue.

United States v. Emery, 541 F.2d 887 (1st Cir. 1976);

United States v. Whitaker, 592 F.2d 828, 829 (5th Cir.

1979); United States v. Edmonds, 611 F.2d 1386 (5th

Cir. 1980); Barrows v. Jackson, 346 U.S. 249 (1953).

In United States v. Emery, supra, the government

failed to raise the question of standing in any form

before the district court. Although the government did

raise the question of standing on appeal, the Court of

Appeals refused to consider the question of standing

because the government had waived it below. 541 F.2d

at p. 889. In the present case, the government did not

raise the question of standing at all — below or on

appeal.

In United States v. Whitaker, 592 F.2d 826 (5th Cir.

1979), the Court of Appeals expressed doubts about the

12

defendant/appellant’s standing to raise the search and

seizure issue. Despite its own reservations about the

defendant’s standing, the court proceeded to rule upon

the merits of the Fourth Amendment claim because the

question of standing had gone unlitigated below. Id. at

p. 828 (N. 2). As in Whitaker, supra, the Court of

Appeals must accept the issues in the same manner as

they came to the court and rule upon the merits of the

Fourth Amendment claim.

The general rule of the scope of appellate review

announced in Singleton, supra, applies with even

greater force in this case because the question of

standing was expressly conceded by the government at

all stages only for it to be raised sua sponte by the Court

of Appeals. As the court stated in United States v.

Patrin, 575 F.2d 708 (9th Cir. 1978):

‘“‘As a general rule, ‘a federal appellate court

does not consider an issue not passed on below.’

(Citation omitted.) It is immaterial whether

the issue was not tried in the district court

because it was not raised or because it was

raised but conceded by the party seeking to

revive it on appeal.” Jd. at p. 712.

The facts of the present case go beyond Singleton and

Patrin, supra, because the petitioner was further unable

to face the question when the government did not raise

it on appeal either. This principle of limited appellate

review has been reaffirmed by this Court on numerous

occasions. Singleton v. Wulff, 96 S.Ct. 2868 (1976);

Hormel v. Helvering, 61 S.Ct. 719 (1941); Youakim v.

Miller, 96 S.Ct. 1399 (1976); Dorszynski v. United

States, 94 S.Ct. 3042 (1974).

13

Virtually every federal circuit has also followed the

general rule that an appellate court will not consider

issues that were not presented to the district court.

Needleman v. Bohlen, 602 F.2d 1 (1st Cir. 1979) —

appeal from suit by dismissed teacher under Title 42,

U.S.C.A. §1983; United States v. Emery, 541 F.2d 887

(1st Cir. 1976) — appeal from denial of motion to

suppress contraband evidence; United States v.

Bazzano, 570 F.2d 1120 (3d Cir. 1977) — appeal from

criminal conviction for illegal gambling; United States

vu. Moore, 453 F.2d 601 (3d Cir. 1971) — appeal from a

criminal conviction; Response of Carolina, Inc. uv.

Leasco Response, Inc., 537 F.2d 1307, 1324 (5th Cir.

1976) — civil anti-trust litigation; Mayberry v. Davis,

608 F.2d 1070 (5th Cir. 1979) — court of appeals refused

to consider state prisoner’s claims that were not

presented to the district court; Messelt v. Alabama, 595

F.2d 247 (5th Cir. 1979) — court of appeals refused to

consider the question of lack of exhaustion of state

remedies because the state did not challenge the state

habeas corpus petitioner on that issue in the district

court; King v. United States, 565 F.2d 356 (5th Cir.

1978) — appeal from denial of relief for a federal

prisoner under Title 28, U.S.C.A. §2255; United States

v. Chapman, 549 F.2d 1075 (6th Cir. 1977) — appeal

from a criminal conviction; United States v. Russell, 585

F.d 368 (8th Cir. 1978) — arguments not raised by

criminal defendant in district court would not be heard

by court of appeals; United States v. Patrin, 575 F.2d

708 (9th Cir. 1978) — appeal from a criminal conviction;

United States v. Oakes, 564 F.2d 384 (10th Cir. 1977) —

appeal from a criminal conviction in which motion to

suppress seized evidence was an issue.

14

The action of the Court of Appeals in the present

case has worked a manifest injustice upon the petitioner

because the failure of the government to challenge his

standing below effectively prevented him from

introducing any evidence on that question. It is precisely

this danger that the above cited cases jealously guard

against. The Court of Appeals’ opinion states that:

“Because Morejon does not claim and the record does

not indicate that the indictment charged him with

possession at the time the search occurred, he lacks

standing to challenge its legality.” (Appx. p. 25) The

petitioner had no opportunity to take the stand under

Simmons, supra, claim ownership of the contraband,

and establish his expectation of privacy in the premises

searched because the government conceded standing

and the district court accepted the government’s

concession as valid. (Appx. p. 3) The action or non-

action of the government cannot be used to deprive the

petitioner of a full and fair review of his Fourth

Amendment claim.

It is respectfully submitted that it does not matter

whether it is the opposing party or the court who raises

an issue that was not litigated below by the parties. The

issue of standing was not litigated below despite the fact

that the government had the opportunity to challenge

standing. In this posture of the case, the Court of

Appeals erred by raising the question of standing sua

sponte and then deciding the petitioner’s Fourth

Amendment claim on that basis.

15

II.

THE COURT OF APPEALS ERRED IN

CONCLUDING THAT THE PETITIONER

DID NOT HAVE STANDING WHERE THE

INDICTMENT SPECIFICALLY CHARGED

HIM WITH POSSESSION OF THE SEIZED

CONTRABAND AND THE RECORD

CLEARLY REFLECTS THAT HE WAS IN

POSSESSION AT THE TIME OF THE

SEARCH AND SEIZURE.

In the present case, the Fifth Circuit Court of

Appeals has not questioned the continued vitality of the

automatic standing rule announced in Jones v. United

States, 362 U.S. 257 (1960). Rather, the Court of

Appeals held that the petitioner lacked standing

because he was not charged with possession of the

cocaine at the time of the search and seizure. (Appx. p.

25)

As noted by this Court in Rakas v. Illinois, ___

U.S. ___, 99 S.Ct. 421, 426 n.4 (1978), the Jones rule of ™

automatic standing has not been overruled as it applies

to cases in which the defendant is charged with

possession of the seized contraband. However, the

petitioner is aware of the fact that this Court is presently

considering the continued vitality of the Jones rule in

the recently argued case of United States v. Salvucci,

599 F.2d 1094 (1st Cir. 1979); cert. granted, 100 S.Ct.

519 (1979).

Because the outcome of the Salvucci case could

have a material impact upon the argument of this

petitioner, we must necessarily adopt the arguments of

16

the Salvucci respondents in favor of retaining the Jones

rule of automatic standing. In addition to the Jones

automatic standing argument, the petitioner submits

that he had actual standing to contest the search and

seizure in the present case. Accepting the language in

Rakas v. Illinois, supra, the petitioner did have a

legitimate expectation of privacy in the 448 grams of

cocaine which Virgen Palenzuela testified that he

entrusted to her for safekeeping. (R.VIII, pp. 831-836,

850.) (Appx. p. 8) Hence, even if this Court overrules

Jones in the Salvucci case, the petitioner would still

have standing to contest the search and seizure. See,

Mancusi v. DeForte, 392 U.S. 346, 88 S.Ct. 2120 (1968).

Briefly stated, the petitioner submits that the Jones

rule of automatic standing should not be abandoned for

precisely the same reasons that it was originally

formulated, to wit: to avoid the perils of self-

incrimination and the vice of prosecutorial self-

contradiction. The principal case that arguably erodes

the automatic standing rule of Jones is Simmons uv.

United States, 390 U.S. 377, 88 S.Ct. 967 (1968).

Simmons, supra, holds that if the defendant testifies at

the suppression hearing, his testimony will not be

directly admissible against him on the issue of guilt or

innocence. Id. at p. 976.

It is submitted that the retreat from the Jones rule

in Simmons did not cure the underlying chill on the

defendant’s ability to take the stand at trial after he has

testified at the hearing on the motion to suppress. In the

case of People v. Sturgis, 58 Ill.2d 211, 317 N.E.2d 545

(1974), the Illinois Supreme Court held that Simmons

did not preclude the prosecution from using the

17

defendant’s suppression testimony for impeachment

purposes. In reaching this conclusion, the Illinois court

relied upon this Court’s decision in Harris v. New York,

401 U.S. 222, 91 S.Ct. 643 (1971). Harris, supra, held

that the government could impeach the defendant with

his prior statements even though said statements were

rendered otherwise inadmissible by Miranda v. Arizona,

384 U.S. 436 (1966). :

Although this Court has not yet ruled upon the

question raised by Sturgis, supra, the probability that

the defendant’s suppression testimony will be used for

impeachment purposes is high because the suppression

testimony is voluntary — not compelled testimony. See,

New Jersey v. Portash, ___ U.S. _—, 9 S.Ct. 1292

(1979). The very real danger that the suppression

testimony will arm the prosecution with impeachment

evidence still serves to keep the defendant from

testifying at both the suppression hearing and at trial.

The defendant must still surrender one constitutional

right to preserve another. Simmons v. United States, at

p. 976. Additionally, by forcing the defendant to take

the stand at the pretrial suppression hearing, the courts

are affording the prosecution an opportunity to develop

evidence to make its case stronger. Duncan v. State, 276

Md. 715, 351 A.2d 144 (1976). See also, Wayne R.

LaFave, Search and Seizure, A Treatise On The Fourth

Amendment, p. 589 (1978).

The second major decision that arguably erodes the

automatic standing rule of Jones is Brown v. United

States, 411, U.S. 223, 93 S.Ct. 1565 (1973). As will be

seen below, the Fifth Circuit Court of Appeals placed a

great deal of reliance upon Brown’s limitation of Jones

18

in holding that the petitioner did not have standing to

contest the search and seizure. Jones stands for the

proposition that where possession is the charge, or an

essential element thereof, the defendant has automatic

standing to contest the search and seizure.

The Brown decision, however, added the

requirement that to have automatic standing the

indictment must allege that the defendant possessed the

ontraband at the time of the contested search and

seizure. Id. at p. 1569. In essence, this added

requirement says that if there has been a “substantial’”’

change in the defendant’s relationship to the property

between the time of the charged possession and the time

of the contested search, the defendant loses automatic

standing. In Brown, the defendants had relinquished all

interests in the goods two months before the contested

search and seizure. It is this aspect of Brown that the

Court of Appeals erroneously relied upon in holding that

the petitioner did not have the standing to contest the

search and seizure. (Appx. p. 25)

The Court of Appeals first states that because the

petitioner does not claim possession of the seized

contraband, he lacks standing. (Appx. p. 25) The logical

response to this is found in the petitioner’s first .

argument. Because the government conceded standing

and both the magistrate and the trial judge ruled that

the petitioner had standing, he had no reason to take the

stand to establish that point. (Appx. p. 3)

The Court of Appeals next states that the record

does not reflect that the indictment charged the

petitioner with possession at the time the search

19

occurred. Count III of the second superseding

indictment‘ specifically charges that on or about July

18, 1977, the date of the contested search and seizure,

the petitioner knowingly possessed the 448 grams of

cocaine seized from the Palenzuelas’ house. (R.I, pp.

131-136.) The Court of Appeals totally overlooked this

specific wording of the indictment.

The facts developed at the hearing on the motion to

suppress and at the trial confirm that the petitioner was

charged with possession at the time of the search and

seizure. The record reflects that the contested search

and seizure took place twenty-five (25) minutes after the

petitioner left the Palenzuelas’ house with Agent

Jezzeny. (Appx. p. 24) (R.IV, pp. 35-37.) When co-

defendant Virgen Palenzuela took the stand at trial, she

testified that the 448 grams of cocaine belonged to the

petitioner, Morejon-Pacheco. (Appx. p. 8; R.VII, pp.

805, 833-836, 850.) Her testimony was that the cocaine

in her house belonged to the petitioner who left it with

her because her house was chosen by the petitioner as

the place where the cocaine would be transferred to

Agent Jezzeny. (R.VII, pp. 833-836.)

The faulty analysis of the Court of Appeals is best

illustrated by the legally and factually inapposite

decisions cited in the opinion. (Appx. p. 25) The case of

United States v. Hodges, 606 F.2d 520 (5th Cir. 1979),

has no bearing on the issues herein. In Hodges, supra, all

of the defendants were charged with conspiracy to

possess and possession of marijuana. It is clear from the

facts of the case that defendant Hodges was charged

‘Count III of the second superseding indictment corresponds to

Count II of the first superseding indictment referred to in the

opinion of the district court. (Appx. p. 3)

20

with the substantive possession count under the

vicarious liability theory established in Pinkerton v.

United States, 328 U.S. 640 (1948). At no time was it

alleged or proved that Hodges ever had actual or

constructive possession of the marijuana. United States

v. Hodges, at p. 523.

Unlike Hodges, supra, the Count III possession

charge was based upon the petitioner’s actual possession

— not the Pinkerton vicarious liability theory. Count III

specifically charges the petitioner and only five of the

ten other co-defendant conspirators with possession of

the 448 grams of cocaine seized from the Palenzuelas’

house on July 18, 1977. (R.I, pp. 131-136.) That only six

of the eleven co-conspirators were charged with

possession of the 448 grams of cocaine seized from the

Palenzuelas’ residence makes it clear that this was not a

Pinkerton/Hodges vicarious liability count.

The Court of Appeals’ reliance on United States v.

Byers, 600 F.2d 1130 (5th Cir. 1979) was also erroneous.

In Byers, supra, the defendants were denied standing

because they were found to have voluntarily abandoned

both the vessels and the contraband prior to the search

and seizure. In the present case, the record clearly shows

that Morejon-Pacheco did not abandon the cocaine.

Rather, he entrusted it to Virgen Palenzuela for

safekeeping in her house until he and Agent Jezzeny

could return to complete their transaction.

The petitioner’s entrustment of the cocaine to

Virgen Palenzuela was not an abandonment but a

gratuitous common law bailment or entrustment to his

‘American Heritage Dictionary (1979). Bailment: The act of

delivering goods or personal property to another in trust.

21

agent, Virgen Palenzuela. Although Virgen Palenzuela

may have had temporary custody, under common law

property concepts, the petitioner was at all times the

actual possessor of the cocaine. As stated by this Court

in Rakas v. Illinois, 99 S.Ct. 421 (1978):

“. . . by focusing on legitimate expectations of

privacy in Fourth Amendment jurisprudence,

the Court has not altogether abandoned use of

property concepts in determining the presence

or absence of the privacy interests protected by

that amendment.” Jd. at p. 430-431, n.12.

The record here establishes that the petitioner retained

both ownership and possession when he placed the

cocaine in Virgen Palenzuela’s house for safekeeping.

The Byers case is also inapposite because the charge

there was conspiracy, not a possessory offense. Hence,

the language in Byers, supra, regarding abandonment is

mere dicta.

Nor is the present case factually similar to United

States v. Palazzo, 488 F.2d 942 (5th Cir. 1974), which is

relied upon heavily in the Hodges opinion. In Palazzo,

supra, the Court found that the defendant Viagran had

voluntarily relinquished all interest in or claim to the

contraband when he sold it the morning before the

search and seizure of the buyers’ luggage at the airport.

Id. at p. 947. It should also be noted that the buyers were

not agents of Viagran in the scheme charged. The Court

reasoned that Viagran had given up all claims of

possession/ownership when he sold the contraband prior

to the search because he no longer had any control over

it.

22

In the present case, unlike Brown, supra, there was

no change in the defendant’s relationship to the

property between the time of the alleged possession and

the time of the contested search and seizure. In fact,

both the indictment and the record reveal that the

charged possession was contemporaneous with the time

of the contested search and seizure — the afternoon and

early evening of July 18, 1977. (R.I, pp. 131-136; R.IV,

pp. 35-37.)

The petitioner further submits that the “‘at the time

of the contested search and seizure’’ language in Brown

vu. United States, supra, is mere dicta that has been

misinterpreted by the courts. All that Brown, Byers, and

Palazzo, supra, stand for is the proposition that if the

defendant wilfully abandons the property by some

affirmative act prior to the search and seizure, he has

given up all claims of possession for standing purposes.

There was no such abandonment by the petitioner in the

present case; therefore, for the purposes of standing, he

was in possession at the time of the search and seizure.

It is further submitted that notwithstanding the

Jones concept of automatic standing, the petitioner had

a “legitimate expection of privacy” in the contraband

seized from the Palenzuelas’ house under Rakas’

substantive Fourth Amendment analysis. The record

below reflects that the petitioner had entrusted his 448

grams of cocaine to Virgen Palenzuela for safekeeping

until he could complete a sale to Agent Jezzeny (R.VII,

pp. 805, 831-836, 850.) The record further reflects that

Virgen Palenzuela had wilfully consented to the

petitioner’s request that she hold the cocaine for him

until he could complete the proposed transaction.

23

(R.VII, p. 833.) Virgen’s testimony was to the effect that

the petitioner retained complete control over his

property. She had no power to sell, transfer or display

the cocaine to anyone other than the petitioner. (R.VII,

pp. 836-837.)

The leading case on this point is United States v.

Jeffers, 342 U.S. 48, 72 S.Ct. 93 (1951). In Jeffers, supra,

the defendant had stored 19 bottles of cocaine in a hotel

room rented by and solely for his two aunts. Although he

had free access to the hotel room, the defendant did not

reside there. This Court held that the defendant had a

legitimate expectation of privacy in the narcotics seized

during the warrantless search of the room. Hence,

Jeffers had the requisite standing to contest the search

of his aunts’ room which resulted in the seizure of the

narcotics he stored therein.

Since the Jeffers decision, this Court and other

federal and state appellate courts have reaffirmed its

holding that the petitioner had a legitimate expectation

that his property would be free from governmental

intrusion when he entrusted it to Virgen Palenzuela.®

Hence, the petitioner had standing to contest the search

and seizure because the search of the house resulting in

the warrantless seizure of the petitioner’s cocaine

violated his Fourth Amendment rights. This Court’s

decisions in Simmons v. United States, supra; Combs v.

United States, 92 S.Ct. 2284 (1972); Brown v. United

States, supra; and Rakas v. Illinois, supra, all recognize

that a defendant may establish a legitimate expectation

that the area in which he stores the property will be free

from governmental intrusion.

®See, Wayne R. LaFave, Search and Seizure, A Treatise On

The Fourth Amendment, Vol. 3, pp. 556-563 (1978).

24

In Simmons, supra, the defendant, charged with

bank robbery, moved to suppress the contents of his

suitcase which he had hidden in the basement of a house

belonging to someone totally unconnected to the crime.

The Court held that even though the defendant had no

proprietary or possessory interest in the premises

searched, he could establish a legitimate expectation of

privacy (standing) in the objects seized. Id. at pp. 974-

976.

In Combs v. United States, supra, the defendant

was charged with possession of illicit whiskey stolen

from interstate commerce. The petitioner had stored the

seized contraband in a shed on his father’s farm.

Because standing was not litigated below, this Court

remanded the case for said determination. One of the

avenues implicitly left open was that the defendant

could establish standing vis-a-vis his interest in the

goods stored on his father’s premises and his expectation

that the storage shed would be free from government

intrustion.

In Brown v. United States, supra, the Court held

that the defendants did not have standing and affirmed

the denial of the motion to suppress the goods seized

from Knuckles’ store. However, the Court specifically

noted that the petitioners “alleged no proprietary or

Possessory interest in Knuckles’ premises or in the goods

seized there.” Id. at p. 1567. The Court did not rule upon

the argument that the defendants had a protected

25

interest in the goods because it was not raised at the

district or circuit court levels. Jd. at pp. 1569-1570, n.4.’

Finally, in Rakas v. Illinois, supra, this Court again

addressed the Jeffers question without having to rule on

it because the petitioners did not assert that they owned

the rifle or the shells that were seized. Jd. at p. 423. The

Rakas opinion leaves no doubt that had the petitioners

properly asserted an ownership or possessory interest in

the objects seized, that a “legitimate expectation of

privacy” could be established. In any event, the Rakas

opinion recognizes the continued vitality of Jeffers

legitimate expectation of privacy in the objects seized.

Id. at p. 426.

Unlike a claim of automatic standing under Jones,

supra, the petitioner, Morejon-Pacheco, has suffered a

violation of his Fourth Amendment rights, not those of a

third party. As in Mancusi v. DeForte, 88 S.Ct. 2120

(1968), despite the fact that Virgen Palenzuela had

knowledge of and access to the 448 grams of cocaine,

society recognizes his legitimate expectation that the

goods seized would be free from governmental intrusion.

Id. at pp. 2123-2124. The Rakas opinion also makes it

clear that on our facts, the petitioner’s legitimate

expectation of privacy is bolstered by his ownership,

possession, and control over the seized contraband in

this case. Jd. at p. 430, n.12.

It is anticipated that the government would rely upon

language in footnote 4 to argue that one cannot have a legitimate

expectation of privacy in narcotics. This argument was expressly

rejected in United States v. Jeffers, supra. See also, Wayne R.

LaFave, Search and Seizure, Vol. 3 at p. 559, n.72. (1978).

26

As the commentators have noted, under Jeffers and

its progeny, the petitioner has met the substantive

expectation of privacy test of Rakas v. Illinois, supra.

“An individual’s right to privacy from

governmental intrusion into his personal

effects does not require that he have physical

control of the property. He can reasonably

expect that his lawfully possessed ‘effects’ will

remain undisturbed upon premises where they

have been lawfully placed or in the custody of a

third party to whom they are lawfully

entrusted. If, however, the individual places

his effects upon premises where he has no

legitimate expectation of privacy (for example,

in an abandoned shack or as a trespasser upon

another’s property), then he has no legitimate

reasonable expectation that they will remain

undisturbed upon these premises.’ LaFave,

Search and Seizure, Vol. 3, pp. 560-561 (1978).

Citing to, Gutterman, “A Person Aggrieved:”’ Standing

to Suppress Illegally Seized Evidence in Transition, 23

Emory L.J. 111, 119 (1974).

In the present case, the record clearly establishes

that the petitioner did not relinquish dominion and

control over his property when he entrusted it to Virgen

Palenzuela. The Court’s attention is also directed to

several other decisions in which standing was predicated

on the defendant’s expectation of privacy in bailed or

entrusted property.

27

In United States v. Wilson, 536 F.2d 883 (9th Cir.

1976), the court indicated that one defendant could have

a reasonable expectation of privacy in his co-defendant’s

suitcase if he had entrusted his belongings to the co-

defendant for storage in that suitcase. Jd. at p. 885. See

also, United States v. Grunsfeld, 558 F.2d 1231 (6th Cir.

1977) where the court held that the defendant might

have established a legitimate expectation of privacy in

the premises searched if he had alleged a sufficient

possessory right in a machine seized from his co-

defendant’s house. Jd. at p. 1241.

A case involving facts very similar to the present

case is United States v. Harwood, 470 F.2d 322 (10th

Cir. 1972). In Harwood, supra, the defendant stored

containers in the attic of a friend’s garage. The owner of

the garage had given the defendant permission to use

the attic for said containers in much the same manner

that Virgen Palenzuela testified she consented to the use

of her house as a place to store the petitioner’s cocaine.

(R.VII, pp. 805-850.)

The court in Harwood, relying upon Jones,

Simmons, and Jeffers, supra, held that the defendant

had standing to contest the search of his friend’s garage

which resulted in the seizure of his containers. United

States v. Harwood, at p. 325. The facts of the present

case are even stronger than Jeffers and Harwood, supra,

because the petitioner not only had Virgen Palenzuela’s

permission to conceal the cocaine in her house, but she

voluntarily aided in its concealment therein. (R. VIII,

pp. 831-836.) (Appx. p. 13) In Jeffers and Harwood,

supra, the expectation of privacy was necessarily

diminished because of the chance that the owner of the

28

premises would accidentally discover the contraband

nature of the bailed goods and call in law enforcement

agents.

If this Court retains the Jones automatic standing

rule, the petitioner’s standing is established because he

was charged with possession at the time of the contested

search and seizure. If, however, the Court overrules

Jones in the pending Salvucci case, the petitioner has

actual standing to contest the search and seizure

because his legitimate expectation of privacy was

violated.

It is submitted that based on the foregoing

authorities, the petitioner had a legitimate expectation

that the goods entrusted to Virgen Palenzuela solely for

his benefit would be free from governmental intrusion

under Rakas’ substantive Fourth Amendment analysis.

29

CONCLUSION

For the above stated reasons, a writ of certiorari

should issue to review the judgment and opinion of the

United States Court of Appeals for the Fifth Circuit.

Respectfully submitted,

MICHAEL J. OSMAN, ESQ.

ROBERT M. DUBOFF, ESQ.

Michael J. Osman, P.A.

Peninsula Federal Building

200 S.E. 1st Street, Suite 501

Miami, Florida 33131

(305) 358-6491

Counsel for Petitioner

BY /s/ MICHAEL J. OSMAN

MICHAEL J. OSMAN

BY /s/ ROBERT M. DUBOFF

ROBERT M. DUBOFF

30

CER1iFICATE OF SERVICE

I hereby certify that on this 7th day of May, 1980,

three copies of the Petition for Writ of Certiorari were

mailed, postage prepaid, to the Solicitor General,

Department of Justice, Washington, D.C. 20530, and to

the United States Attorney, 300 Ainsley Building,

Miami, Florida 33132. I further certify that all parties

required to be served have been served.

MICHAEL J. OSMAN, P.A.

Counsel for Petitioner

BY /s/ MICHAEL J. OSMAN

MICHAEL J. OSMAN

31

Appendix

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF FLORIDA

NO. 77-437-Cr-JLK

UNITED STATES OF AMERICA

v.

JULIO MOREJON-PACHECO, et al.

APPEAL FROM THE UNITED STATES

DISTRICT COURT FOR THE SOUTHERN

DISTRICT OF FLORIDA,

JAMES LAWRENCE KING, DISTRICT JUDGE

Decided: Feb. 6, 1978

Melvyn Kessler, for defendant Julio Morejon-Pacheco.

Richard Woolf, Assistant U.S. Attorney, for plaintiff.

ORDER DENYING MOTION

TO SUPPRESS

JAMES LAWRENCE KING, District Judge.

This cause came on for consideration upon the

motion of the defendants to suppress evidence. The

court, having considered the record and being fully

la

advised in the premises, finds and concludes that the

motion should be denied.

This motion was filed by the defendants Jorge

Palenzuela and Virgen Palenzuela and was joined in by

the remaining codefendants, Julio Morejon-Pacheco,

Luis Ernesto Triana-Digas, and Rene Benitez. The

matter was referred to U.S. Magistrate Sorrentino, who

conducted an evidentiary hearing and filed a written

report recommending that the motion be denied. All

defendants filed or joined in objections to the

Magistrate’s report. After having carefully considered

the objections, the Magistrate’s report, the record, and

the transcript of the evidentiary hearing, this court has

concluded that the Magistrate’s recommendation is

correct and should be carried out.

I. Facts

The facts surrounding the seizure of the evidence

sought to be suppressed are briefly as follows. On July

18, 1977, a Special Agent of the Drug Enforcement

Agency in undercover capacity went to the home of the

defendants Jorge and Virgen Palenzuela with

defendants Jorge and Virgen Palenzuela with defendant

Morejon in order to purchase some cocaine for which he

had been negotiating as part of a conspiracy

investigation. The deal was not consummated and the

agent left. While he was in the home, however, he

observed two packets of cocaine, a scale on which the

cocaine was measured, and a glass in which a field test

as to the quality of the cocaine was made. He also

observed a number of people entering the house and

could not be sure how many left again.

2a

Within an hour after the agent left the house with

the defendant Morejon, these five defendants were

placed under arrest. Morejon and Benitez were arrested

at separate locations away from the house; Triana-Digas

and the Palenzuelas were arrested in the front yard of

the Palenzuela home. A small crowd gathered, and the

officers and the agent took the three defendants into the

Palenzuela home, searching it for any other co-

conspirators who might possess weapons or destroy the

contraband that the agent had so recently observed in

the house. The agent testified that because of the

number of people who had gathered he feared for the

safety of the officers and those under arrest. He also

thought that there might be co-conspirators still inside

the house with access to weapons as well as to the

cocaine. All defendants seek to suppress the items which

were seized during this search, including a loaded

automatic weapon and one-half kilogram of cocaine.

Il. Standing

A threshold issue not fully analyzed in the

Magistrate’s report is that of the standing of defendants

Morejon-Pacheco, Triana-Digas, and Benitez to contest

the seizure of the cocaine at the Palenzuelas’ home. The

defendants argue, the government concedes, and the

Magistrate’s report concludes that these three

defendants have standing because they are charged in

Count II of the indictment with possession of the cocaine

seized with intent to distribute. The issue to be

addressed here is whether the Fifth Circuit still

recognizes a count of possession as conferring automatic

standing, considering the recent Supreme Court

decisions.

3a

The Supreme Court created this concept of

automatic standing in Jones v. U.S., 362 U.S. 257, 80

S.Ct. 725, 4 L.Ed.2d 697 (1960), to prevent a defendant

from having to give up one constitutional right —

protection from self-incrimination — in order to assert

another — privacy. The Court sought to eliminate the

situation in which a defendant was required to prove

what amounted to an essential element of the

government’s case against him in order to contest an

allegedly illegal search and seizure. This protection was

fully developed in 1968 when the Court held that

“testimony given by a defendant to meet such

[standing] requirements should not be admissible

against him at trial on the question of guilt or

innocence.” Simmons v. U.S., 390 U.S. 377, 390, 88

S.Ct. 967, 974, 19 L.Ed.2d 1247 (1968).

Subsequently, Supreme Court propounded what is

now the accepted test for standing under the

circumstances arising in this case:

[T]here is no standing to contest a search and

seizure where, as here, the defendants: (a) were not on

the premises at the time of the contested search and

seizure; (b) alleged no proprietary or possessory interest

in the premises; and (c) were not charged with an

offense that includes, as an essential element of the

offense charged, possession of the seized evidence at the

time of the contested search and seizure.

Brown v U.S., 411 U.S. 223, 229, 93 S.Ct. 1565, 1569, 36

L.Ed.2d 208 (1973). However, the Court specifically

declined to determine whether the Simmons decision

“makes Jones’ ‘automatic’ standing unnecessary” and

4a

decided to “reserve that question for a case where

possession at the time of the contested search and

seizure is ‘an essential element of the offense .. .

charged.’ ”’ Brown, 411 U.S., at 229, 93 S.Ct., at 1569

(citing Simmons, 390 U.S., at 390, 88 S.Ct., at 974).

This is such a case.

The circuits have split as to whether automatic

- standing is still available to a defendant who is charged

with a possession crime but does not meet either of the

other two standards. Hence, automatic standing is still

the law in the Second Circuit and in the Ninth Circuit,

but has been eliminated in the Sixth Circuit. See U.S. v.

Banerman, 552 F.2d 61 (2nd Cir. 1977); U.S. uv.

Jamerson, 549 F.2d 1263 (9th Cir. 1977); U.S. v.

Delguyd, 542 F.2d 346 (6th Cir. 1976). The Fifth Circuit

had adopted the automatic standing rule established by

Jones. See U.S. v. Holmes, 521 F.2d 859 (5th Cir. 1975).

Although subsequent case law in the circuit indicates

that the three Brown standards operate independently

to accord standing (See U.S. v. Smith, 550 F.2d 277 (5th

Cir. 1977) (no evidence offered establishing standing

under ‘‘any of the three categories set out in Brown’’).),

which would indicate that a defendant charged with a

possession crime should be granted standing, the narrow

question presented here is still undecided.

In U.S. v. Archbold-Newball, 554 F.2d 665 (5th Cir.

1977), the defendants were held not entitled to

“constructive standing” derived from Jones. In dicta,

the court quoted language from Brown to the effect that

Simmons has removed the danger of coerced

self-incrimination. We simply see no reason to

5a

afford such “automatic” standing where, as

here, there was no risk to a defendant of either

self-incrimination or prosecutorial self-

contradiction. [441 U.S., at 1569, 93 S.Ct.

1565. ]

554 F.2d, at 679. It would be a mistake, however, to read

this language broadly and construe it to do away

entirely with automatic standing: in Archbold the

question of constructive standing was foreclosed because

the defendant was not charged with an offense which

included the element of possession of the seized item at

the time of the seizure. Archbold is therefore

distinguishable.

[1] Since the Supreme Court has specifically

reserved the question of automatic or constructive

standing where a defendant has been charged with a

possession offense concerning the seized property, and

since the Fifth Circuit has not construed Brown and

Simmons to overrule Jones where the defendant/movant

has been charged. with a possession offense, this court

concludes that Jones, supported by category (c) of

Brown, still presents a viable grant of standing under

these circumstances. Therefore, in the case sub judice,

defendants Morejon-Pacheco, Triana-Digas, and

Benitez must be accorded standing to seek suppression

of the evidence seized at the Palenzuelas’ house. The

Palenzuelas, of course, have standing under all three

categories.

III. Motion to Suppress

[2] This court finds that the circumstances

surrounding the search and seizure are such that this

6a

case qualifies for the ‘‘threat to safety” exception to the

general rule that a warrantless search of a dwelling

cannot be made incident to an arrest occurring outside

the building. See U.S. v. Bowdach, 561 F.2d 1160 (5th

Cir. 1977); McGeehan v. Wainwright, 526 F.2d 397 (5th

Cir. 1976); Hopkins v. Alabama, 524 F.2d 473 (5th Cir.

1975); United States v. Smith, 515 F.2d 1028 (5th Cir.

1975). The record reflects that the officers had probable

cause to fear for their safety and that of the suspects and

bystanders. According to the Supreme Court, “[t]he

Fourth Amendment does not require police officers to

delay in the course of an investigation if to do so would

gravely endanger their lives or the lives of others.”

Warden v. Hayden, 387 U.S. 294, 298 9, 87 S.Ct. 1642,

1646, 18 [°.Ed.2d 782 (1967). Therefore, the Magistrate’s

recommendation is hereby adopted and it is

ORDERED and ADJUDGED that the defendant’s

motion to suppress be and the same is hereby denied.

DONE and ORDERED in chambers at the United

States District Courthouse, Miami, Florida, this 6th day

of February, 1978.

7a

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

NO. 78-5748

NO. 79-2084

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

Vv.

LUIS AGUIAR, JORGE PALENZUELA,

AND JULIO MOREJON-PACHECO,

Defendants-Appellants.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

U.

VIRGEN PALENZUELA,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VU.

JULIO MOREJON-PACHECO

AND LUIS AGUIAR,

Defendants-Appellants.

APPEALS FROM THE UNITED STATES

DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF FLORIDA,

JAMES LAWRENCE KING,

DISTRICT JUDGE

Decided: Feb. 4, 1980

BEFORE AINSWORTH, VANCE

AND ANDERSON,

CIRCUIT JUDGES

Michael J. Osman, for defendant-appellant Morejon-

Pacheco.

Bruce A. Zimet, Assistant U.S. Attorney, for plaintiff-

appellee.

9a

VANCE, Circuit Judge:

These appeals arise out of a federal prosecution of

Jorge Palenzuela, Virgen Palenzuela, Luis Aguiar, Julio

Morejon-Pacheco and others! for offenses relating to

their alleged involvement in the illegal trafficking of

cocaine. After a jury trial in federal district court,

Aguiar, Morejon and Jorge Palenzuela were convicted of

conspiracy to distribute cocaine, 21 U.S.C. §846. Aguiar

and Morejon were also convicted for distributing

cocaine, id. §841(a)(1) and 18 U.S.C. §2. Morejon

additionally was convicted of possession with intent to

distribute cocaine, 21 U.S.C. §841(a)(1),2 and of the

knowing use of a communications facility in the

commission of a narcotic-related felony, id. §843(b).

The case of Virgen Palenzuela, charged with conspiracy

to distribute cocaine and with possession with the intent

to distribute cocaine, id. §§841(a)(1), 846, was severed

from that of her co-defendants. Her appeal is from the

denial of her motion for dismissal on double jeopardy

'The second superceding indictment, upon which the

defendants were tried, named Jose Aleman, Luis Aguiar, Juan

Basilia a/k/a Juan B. Zigler or Sigler, Augusto Gonzalez, Julio

Morejon-Pacheco, Rene Benitez, Jorge Palenzuela, Virgen

Palenzuela, Oscar Torres, Mariana Torres, and John Doe a/k/a

Carlos, for their involvement in the illegal trafficking of cocaine.

Prior to trial, Aleman entered a guilty plea. John Doe a/k/a Carlos

and the Torres were not defendants in this prosecution. Benitez was

convicted with appellants, but failed to appear for sentencing.

Gonzalez was also convicted, but was later granted a new trial by

the court because of the discovery of additional evidence. Basilia

was convicted as well.

2The trial court granted Jorge Palenzuela’s motion for

judgment of acquittal on the charge of possession of cocaine with

intent to distribute, 21 U.S.C. §841(a)(1).

10a

grounds. For reasons stated below, the challenges to the

trial judge’s rulings are for the most part without merit.

We reverse, however, the district court’s decision

denying Jorge Palenzuela’s motion for acquittal based

on the insufficiency of the evidence to sustain his

conspiracy conviction.

I. Facts

In early April 1977, Agent Norman Jezzeny of the

Nevada district of the Drug Enforcement

Administration and Agent Jorge Fonte of the State of

Nevada Division of Investigation of Narcotics began an

investigation into drug trafficking in Las Vegas,

Nevada. Acting in their undercover capacity, they

contacted Jose Aleman in Las Vegas, introducing

themselves as “men in the drug business,’’ and

subsequently expressed their interest in a drug deal.

Aleman mentioned that he knew a man in Key West,

Florida, that might be able to help them, and that he

might arrange a meeting with this man.

Fonte and Jezzeny flew to Florida on April 26, 1977,

to meet Luis Aguiar, the person introduced by Aleman.

They met the next day in Key West. Because Jezzeny

does not speak Spanish, Fonte translated the

conversation, as he continued to do on subsequent

occasions. The agents asked Aguiar about the

availability of a regular supply of significant quantities

of cocaine. Aguiar had none, but promised to look into

some contacts for the agents. Nothing else came of this

meeting, and the agents returned to Las Vegas.

They returned to Miami in June and July to meet

with Aguiar. The three agreed that, if an initial

lla

transaction for cocaine culminated successfully, the

agents would begin purchasing a regular monthly supply

of cocaine. Apparently realizing that alone he could not

provide the agents the amounts of cocaine sought,

Aguiar began seeking alternatives sources of the illicit

drug.’ At their July 15 meeting, therefore, Aguiar

introduced the agents to Rene Benitez, and Aguiar toid

Benitez of his difficulties in procuring cocaine for the

agents and asked Benitez for assistance. Benitez, in

turn, brought the agents and Aguiar to Julio Morejon-

Pacheco. Morejon showed Fonte and Jezzeny samples of

various lots of cocaine and attempted to secure the ten

kilograms of cocaine they sought. The agents, Morejon

and Benitez held further discussions in subsequent days

to settle the price ($380,000) and mode of exchange.

Morejon, with Benitez and the agents present,

made several telephone calls on July 17, 1977, to set up

the cocaine transaction. In two of these calls, Morejon

spoke with individuals whom he addressed as ‘“Mami’”’

and ‘“‘Pepi.’’* After these calls, they discussed a $25,000

deposit to hold the ten kilograms of cocaine until the

next day. Saying that Aguiar wanted this transaction to

go through, saan offered to guarantee the $25,000

deposit.

3One man known only as Carlos met the agents at a Miami bar

on July 14. He offered Fonte seven kilograms of cocaine, which were

refused.

“Pepi” was a nickname used by Jorge Palenzuela, according

to the testimony of his wife, Virgen.

12a

After a number of changes in the plans for the

Tansaction, Benitez and Morejon told Jezzeny on the

lay of the transaction, July 18, that they had two safe

1ouses. Morejon and Jezzeny would go to one house to

view and inspect the cocaine, while Benitez and Fonte

proceeded to the second safe house, where another man

would help count the purchase money brought by Fonte.

When all parties were satisfied, Fonte was to leave the

money at the counting house, and Jezzeny would take

the cocaine with him from the other safe house.

Jezzeny went with Morejon to the home of Jorge

and Virgen Palenzuela (husband and wife). Jorge was

not at home.® Virgen took the men to the bedroom,

where she produced and displayed five and one-half (of

the ten) kilograms of cocaine to Jezzeny. He weighed the

cocaine on a triple-beam scale that was on Mrs.

Palenzuela’s dresser and performed several field tests.

She then offered to give Jezzeny an extra pound of

cocaine, which she obtained from a drawer in her

bathroom, if he was dissatisfied with the quality of the

ten kilograms.® The three then waited for the call from

the second safe house. On the way to the “counting”

house, the location of which was unknown to Fonte,

Fonte mistakenly arrested Benitez, searched him and

removed a piece of paper with an address written on it.

Fonte proceeded to the address and knocked on the

door. Mrs. Ortega, who is Mrs. Palenzuela’s mother and

the house’s owner, opened the door.

‘Oscar Torres, described as an old man in a white suit, was

sitting in a front room of the Palenzuela house when Jezzeny

arrived. Later, Mrs. Torres arrived and joined her husband. During

the cocaine transaction, the couple remained in the front room.

SWhen Jezzeny asked where the other five kilograms were, Mrs.

Palenzuela responded that they were at a nearby house.

/

13a

A few moments earlier, Jorge Palenzuela had called

Morejon. They spoke in Spanish, and Morejon then

reported to the others that they were “not there yet”

(referring to Benitez and Fonte). The telephone

conversation between Morejon and Jorge resumed until

Jorge said “They’re here,” handed the telephone to

Fonte and left the room. Fonte then told Morejon that

the deal was off and to meet him with Jezzeny at a

certain location.? Morejon told the others that

something was wrong.

On hearing this news, Mrs. Palenzuela picked up

the box containing the five and one-half kilograms of

cocaine, and told Jezzeny that “I’m going to give it back

to the people who own it. They have to take it someplace

where it’s safe.”” She took the box to the front of the

house and gave it to Mrs. Torres, who left the house. The

bonus pound remained in the house.

Shortly thereafter, Jezzeny and Morejon arrived at

the designated location and met Fonte. Morejon was

then arrested. Jezzeny, Fonte, other DEA agents and

several uniformed police officers in six or seven police

cars proceeded to the Palenzuela home. When they

arrived, approximately twenty-five minutes after

Jezzeny and Morejon had left, the police and agents

found the Palenzuelas outside. Mr. Palenzuela was

playing with the children, and Mrs. Palenzuela was

talking with neighbors and Luis Triana. They

immediately arrested Mr. and Mrs. Palenzuela and Mr.

Triana. None of the defendants or neighbors offered any

resistance nor were any of them armed. The agents next,

without consent, entered the house and conducted a

7After Fonte left Mrs. Ortega’s home, Mr. Palenzuela returned

to his own home.

14a

search of the premises that lasted about twenty

minutes. The agents took the defendants through each

room as they searched it. They found the pound of

cocaine and $26,000 in the bathroom adjoining the

bedroom. The arrests and search were both warrantless.

The trial of Virgen Palenzuela, Jorge Palenzuela,

Aguiar, Benitez, Morejon, Gonzalez and Basilia

commenced on September 25, 1978, before a jury in the

Southern District of Florida. Following the completion

of the government’s case, Virgen Palenzuela informed

the court that she had elected to testify. Some of her co-

defendants moved for a mistrial or severance of their

cases. She was cross-exa*nined by government counsel

and by counsel for Morejon.® At the completion of her

testimony, her counsel informed the court of his intent

to comment during closing argument on Morejon’s

failure to testify. All defendants, except Virgen, renewed

the motions for a mistrial or severance.

The court, however, severed the trial of Mrs.

Palenzuela and proceeded with the trial against the

remaining defendants. Mrs. Palenzuela did not object,

although she had not moved for the severance. The

remaining defendants were convicted by the jury.

8Mrs. Palenzuela testified that she knew Morejon and indicted

coconspirators Mr. and Mrs. Torres, and that Oscar Torres had left

a package at her house to be held for Morejon. She denies knowing

that the package contained cocaine, denies having discussed the

deal with Jezzeny and Morejon, and denies promising to supply

Jezzeny with any additional quantity of cocaine. She also testified

to her husband’s extreme anger upon learning of her decision to

cooperate with Morejon. She concedes, however, that she acted as a

nonparticipating interpreter for the two men and that she

transferred the cocaine from the bathroom to the bedroom and

back.

15a

II. Severance of Virgen Palenzuela and

Double Jeopardy Bar

On appeal Virgen Palenzuela argues that the trial

court improperly denied her motion to dismiss the

indictment. She contends that she was wrongly severed

from the trial of her six co-defendants and that a retrial

would violate her constitutional protection against

double jeopardy. We disagree.

[1] Once jeopardy attaches, as it did for Virgen

Palenzuela when the jury was sworn to try this case,

Illinois v. Somerville, 410 U.S. 458, 467-68, 93 S.Ct.

1066, 35 L.Ed.2d 425 (1973), a criminal defendant

normally will not lose the opportunity to seek a

favorable verdict from the jury and will not be required

to stand trial a second time, Arizona v. Washington, 434

U.S. 497, 503, 504, 98 S.Ct. 824, 829-30, 54 L.Ed.2d 717

(1978); Wade v. Hunter, 336 U.S. 684, 688-90, 69 S.Ct.

834, 93 L.Ed. 974 (1949). An exception to this rule is

made if the defendant consents to a retrial, United

States v. Kessler, 530 F.2d 1246, 1255 (5th Cir. 1976) or

if a retrial before a new jury is mandated by some form

of manifest necessity, United States v. Kin Ping

Cheung, 485 F.2d 689, 690-91 (5th Cir. 1973). E. g.,

Wade v. Hunter, 336 U.S. at 690-92, 69 S.Ct. 834

(witness temporarily unavailable during war); Simmons

uv. United States, 142 U.S. 148, 12 S.Ct. 171, 35 L.Ed.

968 (1891) (juror prejudice); United States v. Alford, 516

F.2d 941, 947-49 (5th Cir. 1975) (mere convenience not

enough).

[2] In De Luna v. United States, 308 F.2d 140 (5th

Cir. 1962), we held that the fifth amendment requires

severance if a defendant exercises his privilege against

16a

ad

self-incrimination and a co-defendant’s attorney will

make prejudicial comments about his privileged silence.

Id. at 154. All parties to this action agree that Virgen’s

decision to testify and her attorney’s proper decision to

draw the jury’s attention to her co-defendants’ silence

would penalize the fifth amendment privilege of her co-

defendants and would create the sort of incompatibility

between their defenses that under De Luna requires a

severance. We believe that severance, and hence retrial,

of Virgen’s case was justified by the manifest necessity

of protecting the fifth amendment rights of the other

defendants under De Luna and did not violate the

double jeopardy protection of Virgen.

[3] The parties disagree, however, as to who

should have been severed. Contrary to Virgen’s

assertion, De Luna does not provide a rigid answer to

this question. In light of the principles of Arizona v.

Washington, once a severance is found to be warranted

by manifest necessity, the trial court has sound

discretion over who is to be retained and who is to be

severed. See 434 U.S. at 506, 98 S.Ct. at 830 n. 18, 832-34

(1978).

[4] The trial court did not abuse its discretion in

ordering Virgen’s retrial. Cf. United States v. Alford,

016 F.2d at 947-49 (improperly considering

convenience); United States v. Kin Ping Cheung, 485

F.2d at 691-92 (must consider alternatives to mistrial

and must not facilitate the potential for prosecutorial

misconduct). The fact that Virgen was the only

defendant not seeking a severance, although she did not

object to the severance, is simply one of many factors

that properly entered the district court’s decision. That

17a

fact is not, however, dispositive. In light of the district

court’s thoughtful and scrupulous consideration, we

affirm the decision to sever Virgen and to order her

retrial. See Arizona v. Washington, 434 U.S. at 514-516,

98 S.Ct. at 835-36.

III. Nonseverance of Jorge Valenzuela

As previously noted, severance was necessary

below. Aguiar and Morejon argue, however, that the

trial court’s severance of Virgen Palenzuela alone was

error because Jorge remained a defendant in their case

and Jorge’s lawyer, who represented both Palenzuelas,

retained a duty to comment on Morejon’s failure to

testify. This argument fails because it rests on the

fallacious theory that Jorge’s defense, like his wife’s, was

antagonistic to the defenses of Aguiar and Morejon.

[5] A trial court has a duty to sever the trials of co-

defendants with mutually antagonistic defenses to

preserve their rights to a fair trial. De Luna resists the

situation in which one defendant’s counsel properly

wishes to contrast his client’s testimony with the silence

of a co-defendant, who does not want to have his fifth

amendment right not to testify abridged.

[6] There is no antagonism between the defenses

of Jorge and of his co-defendants. Jorge’s defense —

built primarily on his wife’s testimony, see note 8 supra

— is that he did not participate in the cocaine deal and

that he was incensed by and expressly repudiated his

wife’s activities and her decision to allow the transaction

to take place at their home. That defense of ignorance

and then anger differs markedly from his wife’s defense

18a

that she had some idea of what was going on and that

she had agreed to do a favor for Morejon. Thus Jorge and

Virgen were not alter egos each to the other. Although

Virgen’s defense is antagonistic to that of Morejon and

Aguiar, Jorge’s defense cannot be similarly

characterized. No evidence in the record supports the

contention of Morejon and Aguiar that their defenses

were antagonistic to Jorge’s defense.

[7] The trial court’s decision concerning severance

is discretionary, absent a showing of unfairness resulting

from the presence of mutually antagonistic defenses,

which Morejon and Aguiar have not established. A

decision not to sever will not be disturbed, unless the

trial court abused its discretion or some prejudice

resulted from trying the defendants together. United

States v. Swanson, 572 F.2d 523, 528 (5th Cir.), cert.

denied, 439 U.S. 849, 99 S.Ct. 152, 58 L.Ed.2d 152

(1978); United States v. Perez, 489 F.2d 51, 65 (5th Cir.

1973), cert. denied sub nom. Hamilton v. United States,

417 U.S. 945, 94 S.Ct. 3067, 41 L.Ed.2d 664 (1974). That

discretionary decision was made below in a manner that

was sensitive both to the rights and the relations of the

parties and to the impact that Jorge’s defense would

have on the jury’s deliberations.

IV. Comments by Jorge Palenzuela’s Attorney

Aguiar and Morejon claim that the following

comment by counsel for Jorge Palenzuela, to which they

did not object, constituted reversible error because it

abridged their fifth amendment right to silence, see

Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14

L.Ed.2d 106 (1965).

19a

Mr. Morejon is lifelong friend of their family. And

[Virgen Palenzuela’s] father and her mother and all of

her brothers, and whoever that she said that she had.

But, in any event, she told her husband what she

had done. She said that her husband raised all manner

of hell and told her that she surely must be crazy. And

stormed out of the house.

She was under oath. No testimony to the contrary.

(Emphasis added.) They are mistaken.

[8] Comments that undermine a defendant’s fifth

amendment right to silence can vitiate a conviction.

See, e. g., United States v. Edwards, 576 F.2d 1152, 1154

(5th Cir. 1978); United States v. Henderson, 565 F.2d

900, 905 (5th Cir. 1978); De Luna v. United States, 308

F.2d at 154. It makes no difference that the comments

were made by persons other than the prosecutor, e. g.,

United States v. Kaplan, 576 F.2d 598, 600 (5th Cir.

1978), cert. denied, 439 U.S. 1078, 99 S.Ct. 858, 59

L.Ed.2d 47 (1979), or that the comments were indirect,

United States v. Brown, 546 F.2d 166, 173 (5th Cir.

1977).

[9] The comments of Jorge Palenzuela’s attorney,

however, were not intended, and would not naturally

and necessarily be viewed by a jury, as a comment on

Aguiar’s or Morejon’s silence. See United States uv.

Rochan, 563 F.2d 1246, 1249 (5th Cir. 1977). The

comments of Mr. Palenzuela’s attorney clearly aimed

toward two ends. First, they reminded the jury of

Virgen’s testimony describing Jorge’s discovery of the

proposed cocaine transaction and his reaction to it.

20a

Second, they pointed out the government’s lack of

evidence on Jorge’s involvement in the conspiracy. The

lack of any purpose of commenting on his co-defendant’s

silence, suggested by Aguiar and Morejon, is reflected in

their failure to object to the comment when it was made.

That fact is significant considering the vigilant and

vigorous defenses that co-defendants’ counsels provided

their clients, and the need to look at the comments in

context. United States v. Sorzano, 602 F.2d 1201, 1202

(5th Cir. 1979).

[10] Because no objection was raised to the

challenged comment, reversal is warranted only upon a

showing of plain error. United States v. Cook, 592 F.2d

877, 879-80 (5th Cir.), cert. denied, ___ U.S. ___., 99

S.Ct. 2847, 61 L.Ed.2d 289 (1979); Fed.R.Crim.P. 52(b).

See also, Benham v. United States, 215 F.2d 472, 473

(5th Cir. 1954). Aguiar and Morejon have neither

established the occurrence of plain error below nor of

any error at all. Their counsel was at most entitled to

seek cautionary instructions from the trial court with

respect to the challenged comments made by counsel for

Jorge Palenzuela.

V. Sufficiency of the Evidence Supporting

Jorge Palenzuela’s Conviction

At the conclusion of the taking of the testimony in

the case, the district court granted Jorge Palenzuela’s

motion for judgment of acquittal as to Count II,

‘“‘possess[ion] with intent to distribute a controlled

substance.” The court, however, denied his motion for

judgment of acquittal as to Count I, ‘‘conspiracy to. . .

distribute multi-kilogram quantities of a Schedule II

narcotic controlled substance, to-wit: cocaine.”

2la

[11] In reviewing the sufficiency of the evidence,

we view the evidence in the light most favorable to the

government, with all reasonable inferences and

credibility choices read in support of the jury’s verdict.

Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457,

86 L.Ed. 680 (1942); United States v. Barresi, 601 F.2d

193, 195 (5th Cir. 1979). We seek to determine whether

jurors might reasonably find the evidence inconsistent

with every reasonable hypothesis except that of guilt.

United States v. Lonsdale, 577 F.2d 923, 925 (5th Cir.

1978); United States v. Squella-Avendano, 478 F.2d 433,

436 (5th Cir. 1973); United States v. Sidan-Azzam, 457

F.2d 1309, 1310 (5th Cir. 1972).

[12] Our review of the record discloses no evidence

sufficient to show that Jorge had agreed to be involved

in a conspiracy to distribute cocaine. The sole evidence

against Mr. Palenzuela is as follows: (1) Virgen

Palenzuela’s uncorroborated testimony that her

husband used the nickname ‘‘Pepi,” the name of a party

to whom Mr. Morejon spoke; (2) Jorge’s presence at the

home of his mother-in-law, the second safe house, at the

time the counting was to have occurred; and (3) his

saying, ““They’re here,” before handing the telephone to

Fonte.

The trial court specifically found that there was

insufficient evidence to establish that Jorge was guilty

of possessing the cocaine found in his home. The court

thought, however, that the statement, ‘“They’re here,”’

tended to indicate that Mr. Palenzuela had sufficient

knowledge of the drug transaction.

22a

In Roberts v. United States, 416 F.2d 1216 (5th Cir.

1969), we said:

It is elementary that neither association

with conspirators nor knowledge of illegal

activity constitute proof of participation in a

conspiracy.

Id. at 1220 (citing United States v. Falcone, 311 U.S.

205, 61 S.Ct. 204, 85 L.Ed. 128 (1940)). Roberts

indicates that mere knowledge of the purpose of a

conspiracy or association with conspirators, without an

agreement to cooperate in the crime, is not sufficient to

make one a conspirator. United States v. Morado, 454

F.2d 167, 175 (5th Cir.), cert. denied, 406 U.S. 917, 92

S.Ct. 1767, 32 L.Ed.2d 116 (1972); see United States v.

Tyler, 505 F.2d 1329, 1332 (5th Cir. 1975). The requisite

fact of intentional agreement or participation cannot

“be made out by piling inference upon inference,”

Ingram v. United States, 360 U.S. 672, 680, 79 S.Ct.

1314, 1320, 3 L.Ed.2d 1503 (1959) (quoting Direct Sales

Co. v. United States, 319 U.S. 703, 711, 63 S.Ct. 1265, 87

L.Ed. 1674 (1943)), or by “suspicion and innuendo,”

United States v. Palacios, 556 F.2d 1359, 1365 (5th Cir.

1977). Cf. United States v. Perez, 489 F.2d at 73

(repeated actions of participants in scheme sufficient).

On the facts of this case, insufficient evidence

existed for a reasonable jury to infer that Jorge

Palenzuela was a party to an illegal conspiracy. E. g.,

United States v. Littrell, 574 F.2d 828, 832-34 (5th Cir.

1978). It is tempting, although all too often wrong, to

suppose that mere presence is tantamount to

participation, but ‘‘actual presence at the scene of the

crime is not sufficient.’’ United States v. Caro, 569 F.2d

23a

411, 418 (5th Cir. 1978). The statement ‘““They’re here,”’

standing alone, likewise reveals nothing of consequence

here. This statement could have just as easily been

made by any innocent bystander. The conviction of

Jorge Palenzuela must, therefore, be reversed.

VI. Search and Seizure at the Palenzuela House

A motion to suppress the evidence found at the

Palenzuela home was filed on behalf of the defendants

on October 7, 1977. The United States magistrate took

testimony and recommended denial of the defendants’

motion to suppress. The trial court entered its order

denying the defendants’ motion on February 6, 1978.

[13] The general rule is that a warrantless search

of a dwelling cannot be made incident to an arrest

occurring outside the building. An important exception

to this rule is made if the delay from securing a warrant

would seriously threaten the lives of the police or of

others. The trial court denied suppression of the cocaine

because it concluded that the requisite “threat to

safety” existed in this case.

[14] Jorge Palenzuela and Morejon have attacked

this decision on appeal. We conclude, however, that we

need not decide the issue today. Jorge Palenzuela’s

conviction is reversed on other grounds. Morejon, on the

other hand, has no standing to raise this question. In

Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36

L.Ed.2d 208 (1973), the Supreme Court articulated the

accepted test for standing to contest an allegedly illegal

search and seizure under the circumstances arising in

this case.

24a

[T]here is no standing to contest a search and

seizure where. . . the defendants: (a) were not

ou the premises at the time of the contested

search and seizure; (b) alleged no proprietary

or possessory interest in the premises; and (c)

were not charged with an offense that includes,

as an essential element of the offense charged,

possession of the seized evidence at the time of

the contested search and seizure.

Id. at 229, 93 S.Ct. at 1569. Because Morejon does not

claim and the record does not indicate that the

indictment charged him with possession at the time the

search occurred, he lacks standing to challenge its

legality. United States v. Hodges, 606 F.2d 520, 523 (5th

Cir. 1979); United States v. Byers, 606 F.2d 1130, 1132

(5th Cir. 1979). See Rakas v. Illinois, 439 U.S. 128, 133,

99 S.Ct. 421, 58 L.Ed.2d 387 (1978).

VII. New Trial and Evidentiary Hearing Regarding

Fonte

After their convictions, Aguiar and Morejon moved

for a new trial. They attached to this motion a transcript

of a preliminary hearing in Nevada state court involving

coconspirator Aleman (charged with trafficking in

heroin) during which Fonte testified. They also

submitted posttrial affidavits of Aleman and Ramon

Gutierrez to the effect that Fonte falsely testified at

trial. They also submitted additional transcripts and

reports that they claimed to establish Fonte’s reputation

and history of false testimony in unrelated matters.

The trial court denied the new trial motion, and did

so without holding an evidentiary hearing on the

accusations. Aguiar and Morejon contend that the trial

court abused its discretion in failing to conduct an

evidentiary hearing and, in the alternative, in denying

their new trial motion. We disagree with that

contention.

The heart of this challenge is the contention that

Fonte’s prior testimony in the Nevada proceeding was in

direct conflict with, or impeaches his credibility with

respect to, his testimony at the trial below. From this

contention Aguiar and Morejon argue that their

convictions were obtained through the government’s

knowing use of false evidence and perjured testimony

violated the standing discovery order and Brady v.

Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215

(1963). Aguiar and Morejon also contend that Aleman,

who was familiar with Fonte’s prior testimony, was

impermissibly “hidden” by the prosecution during the

trial.

[15, 16] After a careful examination of the

transcripts and affidavits, we see no significant

inconsistency or discrepancy in Fonte’s testimony on

any material issue involved below or on any matter that

constitutes impeaching evidence. Appellants’ perjury

argument, therefore, is groundless. To establish a

violation under Brady, Aguiar and Morejon must

establish “(a) suppression by the prosecution after a

request by the defense, (b) the evidence’s favorable

character for the defense, and (c) the materiality of the

evidence.” Moore v. Illinois, 408 U.S. 786, 794-95, 92

S.Ct. 2562, 2568, 33 L.Ed.2d 706 (1972); United States

uv. Anderson, 574 F.2d 1347, 1353 (5th Cir. 1978). See

26a

Brady v. Maryland, 373 U.S. at 87, 83 S.Ct. 1194.

Assuming that appellants have established (a), they

have not shown (b) and (c) because there is no

reasonable likelihood that “the suppressed evidence

might have affected the outcome of the trial.” United

States v. Agurs, 427 U.S. 97, 104, 96 S.Ct. 2392, 2398, 49

L.Ed.2d 342 (1976). See id. at 112-14, 96 S.Ct. 2392;

Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763,

31 L.Ed.2d 104 (1972); United States v. Barham, 595

F.2d 231, 241-43 (5th Cir. 1979); United States v.

Herberman, 583 F.2d 222, 228 (5th Cir. 1978); Galtieri v.

Wainwright, 582 F.2d 348, 362 (5th Cir. 1978) (en banc,

plurality opinion); United States v. Anderson, 574 F.2d

1347, 1354 (5th Cir. 1978). The undisclosed prior

testimony was neither material, favorable nor

exculpatory. The prior testimony similarly does not

constitute “impeaching evidence.” United States v.

Anderson, 574 F.2d at 1354. The production of the

earlier testimony would not have created a reasonable

doubt of defendants’ guilt that did not otherwise exist.

See United States v. Agurs, 427 U.S. at 112, 96 S.Ct.

2392. No evidence suggests a government plan to hide

Aleman, his testimony in the Nevada proceeding, or

Ramon Gutierrez.® Finally, we see no reason why the

district court should have held an evidentiary hearing.

The trial court, therefore, did not abuse its discretion in

denying the new trial motion or in not conducting an

evidentiary hearing. See United States v. Hamilton, 559

F.2d 1370, 1373 (5th Cir. 1977).

In light of these conclusions, we need not reach the merits of

the government’s argument regarding due diligence. United States

v. Beasley, 582 F.2d 337 (5th Cir. 1978).

27a

Conclusion

The convictions of Luis Aguiar and Julio Morejon-

Pacheco are affirmed, as is the district court’s denial of

Virgen Palenzuela’s motion for dismissal. The

conviction of Jorge Palenzuela is reversed.

AFFIRMED IN PART; REVERSED IN PART.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

NO. 78-5748

NO. 79-2084

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JULIO MOREJON-PACHECO,

Defendant-Appellant.

APPEAL FROM THE UNITED STATES

DISTRICT COURT FOR THE SOUTHERN

DISTRICT OF FLORIDA,

JAMES LAWRENCE KING, DISTRICT JUDGE

Decided: Feb. 4, 1980

Rehearing Denied: March 10, 1980

BEFORE AINSWORTH, VANCE AND

ANDERSON, CIRCUIT JUDGES

Michael J. Osman for defendant-appellant Julio

Morejon-Pacheco. Bruce A. Zimet, Assistant U.S.

Attorney, for plaintiff.

RECEIVED MAR 10, 1980

FILED MAR 10, 1980

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 78-5748

79-2084

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JULIO MOREJON-PACHECO,

Defendant-Appellant.

Appeal from the United States District Court for the

Southern District of Florida

ON PETITION FOR REHEARING AND

PETITION FOR REHEARING EN BANC

(Opinion February 4, 1980,

5 Cir., 1980, 610 F.2d 1296).

(March 10, 1980)

Before AANSWORTH, VANCE and ANDERSON,

Circuit Judges.

PER CURIAM:

( )The Petition for Rehearing filed on behalf of Julio

Morejon-Pacheco is DENIED and no member of this

panel nor Judge in regular active service on the Court

having requested that the Court be polled on rehearing en

banc, (Rule 35 Federal Rules of Appellate Procedure;

Local Fifth Circuit Rule 16) the Petition for Rehearing En

Banc is DENIED.

( ) The Petition for Rehearing filed on behalf of Junio

Morejon-Pacheco is DENIED and the Court having been

polled at the request of one of the members of the Court

and a majority of the Circuit Judges who are in regular

active service not having voted in favor of it, (Rule 35

Federal Rules of Appellate Procedure; Local Fifth Circuit

Rule 16) the Petition for Rehearing En Banc is also

DENIED.

( ) A member of the Court in active service having

requested a poll on the reconsideration of this cause en

banc, and a majority of the judges in active service not

having voted in favor of it, rehearing en banc is DENIED.

ENTERED FOR THE COURT:

United States Circuit Judge

Form 704-2

3la